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Response to UN High Commissioner's Comments on Sri Lanka

2014 Nov 13

By NeResponse to UN High Commissioner’s Comments on Sri Lanka

ville Ladduwahetty

This is in response to two of the comments reported to have been made by the UN High Commissioner for Human Rights, during the course of a press release on Nov. 7, 2014.

1. The High Commissioner accused the Government of Sri Lanka of a "… continuing campaign of distortion and disinformation about the investigation, as well as the insidious attempts to prevent possible bona fide witnesses from submitting information to the investigating team, is an affront to the United Nations Human Rights Council which mandated the investigation".

2. Continuing, the High Commissioner stated: "The Government of Sri Lanka has refused point blank to cooperate with the investigation despite being explicitly requested by the Human Rights Council to do so. Such a refusal does not, however undermine the integrity of an investigation set up by the Council – instead it raises concerns about the integrity of the government in question. Why would governments with nothing to hide go to such extraordinary lengths to sabotage an impartial international investigation?"

1. ATTEMPTS to PREVENT BONA FIDE WITNESSES

Two incontrovertible facts are:

A. Since all operations associated with the UNHRC investigating team are being conducted outside Sri Lanka, all evidence presented by witnesses whether oral or written would necessarily have to be made or submitted OUTSIDE SRI LANKA.

B. As stated by the High Commissioner: "On the issue of transparency, we will not be releasing information on the interviews we are conducting, or where, or when they take place. This is, again, standard procedure for protecting sources of information especially where there is a clear risk that people providing information may suffer reprisals".

If, as stated by the High Commissioner, no one other than the bona fide witnesses are being made aware of the "information on the interviews…and where or when they take place" and such interviews are only conducted OUTSIDE Sri Lanka, it is IMPOSSIBLE for the Sri Lankan Government or any other to resort to "insidious attempts to prevent or harass possible bona fide witnesses from submitting information to the investigating team". For the High Commissioner to imagine that it is possible to harass or intimidate human rights defenders and individuals outside Sri Lanka who may wish to cooperate with the investigation without knowing who they are, and when or where investigations are conducted, is beyond comprehension. Under these circumstances, the High Commission is obligated to explain how "A wall of fear" could be created in the absence of any information pertaining to the UN investigation that is being conducted outside Sri Lanka.

The incident where a person collecting signatures of potential witnesses on blank forms was arrested should be viewed objectively by the High Commissioner, not as an attempt to intimidate but rather as an attempt by the Government to prevent unscrupulous persons from abusing and thereby discrediting the ongoing investigations by the Office of the UNHRC, despite its declared ability to "spot fraudulent submissions". The distorted interpretation given by the High Commissioner is reflective of his prejudiced perspective; a perspective that is not helpful to function objectively.

The contradictions cited herein make the charges of deterring and intimidating individuals from submitting evidence, baseless. In the light of such mindless and false charges to accuse the Government of Sri Lanka is unacceptable, and therefore a just cause to call for a retraction and an apology.

2. REFUSAL TO COOPERATE with the UN INVESTIGATION

There are two principled and compelling reasons for Sri Lanka’s decision not to cooperate with the UNHRC investigation (OISL). They are:

A. The contradictions between clause 2 and 10 (b) of the 26 March, 2014 UNHRC Resolution.

B. The UNHRC does not have the mandate as per UN Resolution A/RES/48/141 that set up the position of a "High Commissioner for the promotion and protection of all human rights" and the A/RES/60/251 that set up the Human Rights Council in 2006. The current investigation is based on a fabricated "interpretation", as admitted by the former High Commissioner during a meeting with NGOs in March 2014.

The current High Commissioner has raised concerns about the integrity of the Government. He insinuates that Government of Sri Lanka is not cooperating with the investigation because it has something to "hide", and that "governments with nothing to hide (would not) go to such extraordinary lengths to sabotage an impartial international investigation". Such serious prejudices do not reflect what is required of a High Commissioner expected to act with principles of "universality, impartiality, objectivity and non-selectivity in the promotion of human rights" (Clause 4 of UN Resolution A/RES/60/251 that established the Human Rights Council in 2006).

A. CONTRADICTION BETWEEN CLAUSE 2 and 10 (b)

Sri Lanka’s non-cooperation is not because of the misguided and delusional reasons attributed by the High Commissioner. If the High Commissioner re-visits clause 2 and 10 (b) of his own Human Rights Commission Resolution of 26 March, 2014 (A/HRC/25/L.1/Rev.1) he would realize that the contradictions between clauses 2 and 10 (b) make it impossible for the Government to cooperate with the UNHRC investigation while conducting its own national investigation.

The reason for non-cooperation is because of the conflict between provisions of clause 2 which "Calls on the Government of Sri Lanka to conduct an independent and credible investigation into allegations of international human rights law and international humanitarian law…" and clause 10 (b) that calls on the Office of the High Commissioner "To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes…". This has resulted in two parallel investigations being conducted, one within Sri Lanka and the other outside Sri Lanka.

Furthermore, clause 10 calls for establishment of "an international inquiry mechanism in the absence of a credible national process…". Therefore, if the High Commission studies the contents of the March 2014 Resolution with due diligence, he would realize that an investigation by his Office is warranted ONLY in the "absence of a credible national process". This means that since there is an ongoing "national process" in the form of a Presidential Commission with the support of internationally recognized panel of advisors, the current investigation by the UNHRC should cease. Not to do so would mean that there would be two parallel investigations with differing conclusions and recommendations. This is a disaster that should be avoided at all costs, if human rights issues are not to be ridiculed.

B. The second objection for non-cooperation is because the mandate granted when the post of High Commissioner was set up under provisions of A/RES/48/141 and the Human Rights Council was set up under provisions of A/RES/60/251 does not include "investigations" into violations of human rights. The fate of sovereign member States cannot be subjected to "interpretations" of the mandate granted under this resolution. Expanded mandates require the approval of the General Assembly. That has not happened. In the absence of such a mandate, for the UNHRC to investigate alleged violations of human rights is to exceed its remit. Cooperating in such an exercise would make Sri Lanka an accomplice in an unauthorized activity, with ramifications and impact on other Member States as well, in the future.

CONCLUSION

The High Commissioner has resorted to a mindless attack on the Sri Lankan Government accusing it of harassing and intimidating bona fide witnesses. In this regard, the High Commissioner owes an explanation as to how it is possible for anyone to harass and intimidate witnesses when the overwhelming majority of them submit evidence outside Sri Lanka, and no one knows either the nature of the investigation, or "when and where" they are conducted. To accuse a sovereign Government without a satisfactory explanation, using vituperative language is unacceptable. In the circumstances, a retraction and an apology from the High Commissioner for Human Rights are in order.

The High Commissioner has also come down hard on the Sri Lankan Government for non-cooperation in the ongoing investigations conducted by the UNHRC. Without resorting to undiplomatic language unbecoming of an international official representing an international body such as the United Nations, careful introspective reflection should make him realize that the resolution of 26 March, 2014, which mandated this ongoing activity would in fact spawn a situation that would result in two parallel investigations, one by the UNHRC and the other by the Government of Sri Lanka. This is unacceptable. Expecting the Government of Sri Lanka to cooperate with both would amount to ridiculing both investigations.

Ever since the UN Charter was universally accepted, the UN has been grappling with the task of how to promote and improve human rights in member states. In the process, administrative arrangements for promoting human rights have undergone several transformations due to operational biases instigated by the agenda of the UN’s major players. Judging from the manner in which human rights issues are currently handled, it would not be too long before the UNHRC undergoes further transformations. It is hoped that the current High Commissioner does not become a tool in this tragic process.

The Centre for Human Rights and Research (CHR) Sri Lanka, www.chrsrilanka.com the sister organization of Campaign for Free and Fair Elections (CaFFE) www.caffe.lk, was established in 2010 in a bid to address the growing human rights concerns in the country and to educate the people about issues which have been neglected by the main stream media or civil society groups for various reasons. In addition to our continuous work with CSOs and human rights activism, in the past four years we have studied, spoken about and published greatly on Freedom of Information, Academic Freedom, and the Lessons Learnt and Reconciliation Commission (LLRC).